In 2010, I was admitted to the United States. In 2012, I was denied entry due to a 1985 criminal conviction. Can you tell me whether I am truly inadmissible to the U.S.?

Question:

In 1985, I was convicted of attempted theft in Canada (I broke a car window). I am a Canadian citizen and currently live in Vancouver, Canada. Last May, I tried to enter the United States, but was denied entry because of my 1985 conviction. I have no other criminal record. Interestingly, two years ago when I tried to cross the border, I was sent to secondary inspection, detained and questioned for 2 hours, but allowed to enter. During my detention, Customs and Border Protection (CBP) managed to damage my classic car that I was traveling in a the time. I filed a claim against them, but it was eventually settled out of court. Last August, my criminal record was completely expunged. CBP claims they can still hold my previous criminal conviction against me. I only cross the border for car shows, charity fund raising events, and to visit friends. Outside of my 1985 conviction, I have never had any other legal issues. Can you provide me with any input as to whether I am admissible to the United States, I can't seem get a consistent answer from CBP?

Answer:

Thank you for contacting the SRW Border team with your question. You are certainly not the first person to receive inconsistent answers from Customs and Border Protection (CBP). As I recently told a client, CBP officers may be professional and at times helpful, however, in reality, officers should never be your only source of guidance regarding your immigration matters.

We receive many questions relating to previous criminal convictions and their ramifications on admissibility. While each case we receive is different, our initial approach is always the same: through our consultation process, thoroughly review the case and then discuss the case in detail with the client and determine the best strategy moving forward depending on our clients goals.

I imagine that the claim you filed against CBP may have resulted in some ill will; however, CBP cannot use that as a ground for denying your admission into the United States. As far as your conviction is concerned, we would like to review your complete court record to determine: (1) if the conviction makes you inadmissible to the United States for immigration purposes, and (2) how the current disposition of the conviction affects your admissibility. Even though your conviction is from 1985, was your sole conviction and it has been expunged, if it indeed is an ‘conviction’ as defined under the Immigration & Nationality Act, it could very well mean that you are inadmissible to the U.S. under INA §212(a)(2)(A)(i)(I). However, as mentioned above, we would need to determine whether you do indeed have a ‘conviction’ for immigration purposes, whether it falls under any of the enumerated exceptions, etc. In the event that your court records do not provide enough information, we will likely ask that you request your RCMP. It may even be beneficial to make a Freedom of Information Act (FOIA) request to obtain your complete CBP record.

Once we understand the disposition of your conviction and how it affects your admissibility, we will likely have one of two choices: (1) if our research determines that you are indeed inadmissible to the U.S. because of your criminal conviction, help you prepare a nonimmigrant waiver application packet (Form I-192) for submission to the Admissibility Review Office; or (2) if our research indicates that you are not inadmissible, we can provide a service called a “controlled admission.” A controlled admission typically includes the following: (1) a comprehensive professional analysis of the client's U.S. immigration issue(s); (2) preparation and submission of a detailed packet outlining the reasons why you are admissible to U.S. Customs & Border Protection (CBP) at a local Port of Entry; and (3) attorney accompaniment to the local Port of Entry for your admission.

For more information about your case, we encourage you to contact our office and schedule a consultation to speak with the SRW Border team and receive a thorough professional analysis of your case. We look forward to hearing from you.

I was convicted of 2 minor drug charges (possession) in Canada, but the convictions were pardoned in 1994. Do you think my case is likely to be approved for an I-192?

Question:

I have a situation that requires a nonimmigrant waiver. I am a Canadian citizen and currently live in Montreal, Quebec. Twenty-five years ago I was convicted for 2 minor drug charges (possession), but the convictions pardoned in 1994. I am seeking help with preparing a Form I-192 waiver and found your website on the Internet. Do you think my case is likely to be approved?

Can you tell me if, when depositing the waiver package at Port of Entry, Customs and Border Protection officers inquire about the facts of my previous convictions or do they simply verifying that the waiver is complete? I do find this whole thing intimidating.

At this point in time, I am collecting documents (RCMP, court documents-indictment-conviction-minutes of trial). If I chose to move forward with your assistance, the documents that I would be providing will be mostly in French. I hope this is not a problem.

Finally, since my record is sealed, it is not visible to law enforcement in Canada. My question is what will happen to my waiver application when it is submitted to the Admissibility Review Office? Will the information in the application be disseminated to other jurisdictional systems? I am concerned that a possible background check may reveal my previous conviction and jeopardize my job or future promotions.

Answer:

Thank you for contacting SRW Border Lawyers. As you are likely aware, Canadian citizens who are inadmissible to the U.S. and who would like to enter the U.S. for non-immigrant purposes, whether it be as a visitor for pleasure, business visitor or under a non-immigrant employment category (TN, L-1, etc.) must first apply for a nonimmigrant waiver (Form I-192). Due to your two (2) previous minor drug convictions, you are most likely inadmissible to the United States INA §212(a)(2)(A)(i)(II) and require a nonimmigrant waiver under INA §212(d)(3).

Our Services

Since the facts and circumstances of each waiver case is different, SRW Border Lawyers makes it a practice to first review each case in detail before confirming that a waiver is necessary. For example, we would want to know how old you were at the time of these convictions and how these proceedings were handled – and confirm whether you truly have a ‘conviction’ for immigration purposes. A consultation provides us the best opportunity to review each aspect of a case and address any issues or concerns you may have. Once we confirm that a waiver is necessary, we will assist you with collecting all necessary documents, complete all forms, and prepare a detailed legal brief outlining your eligibility for the nonimmigrant waiver under precedent case law.

Our firm has prepared numerous nonimmigrant waivers for clients throughout Canada, and each case brought with it a different set of facts and varying degrees of complexity and seriousness. While we never guarantee that a waiver application will be approved, we never take a case that we believe has little or no chance of succeeding.

Based on the information you provided in your email, there appear to be a number of favorable factors in a prospective nonimmigrant waiver application on your behalf. Your convictions, presumably the only ones you have, were from almost twenty-five years ago and you have not shown a history of recidivism. Other factors we would want to stress is how you have been a productive and respected member of society. Additionally, were you granted a pardon or was your case just sealed? If granted a pardon, we would want to highlight the favorable treatment you have received from your own government. As far as your French documents, generally, they would need to be translated before being submitted with your nonimmigrant waiver application. We sometimes obtain fee quotes for our clients from our third party vendor and let our clients choose how to proceed regarding the translations.

Submitting A Waiver Application at a Port of Entry

Submitting your waiver application at a port of entry is limited to paying the appropriate government fee and submitting your application. This is not a time where Customs and Border Protection officers address the merits of your waiver or question you about your previous convictions.

Admissibility Review Office (“ARO”)

The extent of the Admissibility Review Office’s (ARO) information dissemination is unknown. Once a waiver is filed, the agency provides little insight on the process other than providing (often incorrect) timetables for adjudication. In recent years, there has been a trend toward consolidating data among law enforcement agencies throughout Canada and the United States; however, we have yet to encounter an issue similar to the one you describe in your question.

Please continue to collect the documents that you outlined in your email (i.e., RCMP, court documents, certificate of disposition, minutes of trial). In the meantime, if you have any additional questions or concerns, or would like to set up a consultation to speak with us to discuss the specifics of your case, please call our office. We look forward to speaking with you.

I was "flagged" and denied entry into the United States as a visitor in B-2 status. What can I do to correct any negative information in my file maintained by Customs and Border Protection?

Question

Dear SRW Border Lawyers,

I am a Canadian citizen and I currently live in Toronto, Ontario, Canada. Last week, I was denied entry into the United States at the U.S. Customs and Border Protection preclearance at Pearson International Airport. My primary purpose for traveling to the United States was to visit/tour and meet with my friend (and employer) who was also traveling on B-2 visitor status.

At the preclearance, I was extensively questioned by CBP when I explained that my flight was purchased by my employer as a bonus for my work with the production company that he owns in Canada. When asked what I do for a living, I stated I was a TV Producer, and I was then promptly sent to secondary.

After about an hour, I was told I was inadmissible to enter the United States. I was photographed, fingerprinted, and given a document to read and sign. I found the document inaccurate and did not sign it. No other clear information was given to me as to the reason I could not travel other than CBP believed I was being dishonest about my reason for visiting, and they believed I was seeking entry to work. I was informed, however, that I was not banned and that I could attempt to re-enter at a later date.

I went to the Air Canada desk to explain my situation, and was told I was rescheduled on a later flight. I was also informed that as long as I was told I was not banned that I could attempt to reenter the customs area and plead my case to another CBP official. I then checked back in and told a different CBP officer my situation. He said he believed me and would like to send me through, but I had been “flagged” and was required to enter secondary.

During my second visit to secondary, CBP officials said that in order to gain entry I had to bring documents that proved I was going to Los Angeles only to visit and a letter from my friend explaining why he paid for my air travel. After being unable to contact my employer, I cancelled my trip and left the airport.

I have no idea why I was found inadmissible. I am concerned that this ordeal will affect future travel to the United States. What can I do to correct any negative information in my file?

Answer

Thank you for your question. Based on what you briefly described, it appears as if you were simply turned away because CBP did not feel that you qualified for B-2 (visitor for pleasure) status, either because they felt that you did not establish that you had strong ties to Canada and/or they felt that you were seeking to enter the U.S. to work (which is not a permissible B-2 activity).

In general, CBP will issue documents or take a sworn statement from you if something more serious than a denial resulted from your encounter. Since no documents were issued and you were told by CBP officials to return when you could provide additional information, there is a good chance that no harmful action was taken. When the government fails to issue explanatory documents or provide adequate reasoning for a denial, it is understandable how you may be hesitant to reapply for admission into the United States. You cannot help but think that your next attempt will undoubtedly result in a permanent bar. Furthermore, it is not helpful when CBP begins to throw around terms like “flagged,” which only heighten your anxiety.

In situations such as yours, when you have little information about why you were denied, one service that we provide for our clients is to submit a FOIA request to see what, if anything, is in their file. FOIA requests can be made to the Department of State, Customs and Border Protection, or United States Citizenship and Immigration Services. Unfortunately, FOIA requests take around 6-8 months to process, so expect a wait once you submit your request. Once we received a client’s complete file, we completely review the file and develop a strategy moving forward that meets the client’s short and long-term goals.

Aside from making a FOIA request, there is little else that can be done other than going back to the border with “stronger ties” and applying for admission. Additionally, due to our proximity to the border, we also offer a service we refer to as “Controlled Admission.” A Controlled Admission allows us to accompany our clients to the border and guide them through the inspection process. We understand that applying for admission can be daunting, but with a Controlled Admission, we are able to personally advocate on behalf of our client at the border should any issues arise.

At this time, the best solution I can offer is to have you schedule a consultation with our office so we can thoroughly discuss what documents/information you presented at the border, about your conversations with CBP and determine a strategy for moving forward. We look forward to speaking with you.

Domestic Worker Who "Jumped the Gun" is Forgiven by Customs and Border Protection

A Canadian Domestic Worker who had worked for a Canadian family for over 15 years had entered the United States only as a B-2 in order to prepare her own family for the upcoming temporary transfer to the U.S. (i.e. find housing, locate a school for the Domestic Worker’s child, etc.) , with the intention of simply resuming her Domestic Worker duties once the Canadian family entered the U.S. in H-1B status. Unfortunately, the Domestic Worker believed that she could remain in the U.S. in B-2 status while commencing her employment duties as a Domestic Worker [which is a permissible B-1 activity, but not a permissible B-2 activity] and simply apply for B-1 Domestic Worker upon her subsequent re-entry into the U.S.

Unfortunately, the Domestic Worker learned the error of her ways when she attempted to re-enter the U.S. and was denied entry. While chastising her for commencing her B-1 activities without first properly obtaining B-1 status, CBP also questioned whether her daughter, a Canadian citizen, had a right to attend a public school while she was accompanying her mother to the U.S., with her mother being the principal B-1 Domestic Worker and the daughter having derivative B-2 status.

Our research, supported by various provisions of the Foreign Affairs Manual, gave us the ability to demonstrate to CBP that the daughter, whose sole purpose of being in the U.S. was to accompany her mother, was allowed to attend public school as a B-2 derivative. After advocacy on our firm’s part, fortunately, the Domestic Worker was admitted as a B-1 Domestic Worker and her daughter was admitted and documented as a B-2, permitting her to attend public school.